According to the BBC a court in Sweden has jailed four men behind The Pirate Bay (TPB), the world’s most high-profile file-sharing website, in a landmark case.

It’s amusing to note that the BBC shows no bias whatsoever in the inferences it would like readers to draw from the fact that “The Pirate Bay’s first server is now a museum exhibit in Stockholm”. Implicitly, The Pirate Bay has ended and has already been consigned to the history books.

However, let’s just have another look at the BBC’s more serious claim that this is a ‘landmark case’.

I wonder if this case has any precedents?

In other words, given that what we fail to learn from history is that we are doomed to repeat it, let’s see if there’s anything in our history that can inform us as to our future.

I’ve got an idea. What would such a case look like if the news story was remixed to make it appear as if it related to issues that would have been familiar around 80 years ago?

A court in New York has jailed four men behind The Bootlegger Bay (TBB), the nations’s most high-profile speakeasy promotions agency, in a landmark case.

Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde were found guilty of breaking sumptuary law (per the 18th amendment) and were sentenced to a year in jail.

They were also ordered to pay $4,500 in fines.

Temperance Societies welcomed the verdict but the men are to appeal and Sunde said they would refuse to pay the fine.

Speaking to The New York Times, the chairman of coalition body the Anti-Saloon League (ASL) Wayne Wheeler said the verdict sent out a clear message.

“These guys weren’t making a principled stand, they were out to line their own pockets. There was nothing meritorious about their behaviour, it was reprehensible.”

“The Bootlegger Bay did immense harm and the fine doesn’t even get close to due penitence, but we never claimed it did.”

“There has been a perception that imbibing alcohol is OK and that the temperance movement should just have to accept it. This verdict will change that,” he said.

The four men denied the charges throughout the trial, saying that because they did not actually manufacture or distribute any intoxicating liquour, they were not doing anything wrong.

Speaking on WRUC, the assistant judge explained how the court reached its findings.

“The court first tried whether there was any question of consumption of alcohol by persons upon the premises and that has been proved, that the offence was committed.”

“The court then moved on to look at those who acted as a team to operate the Bootlegger Bay speakeasy promotions agency, and the court found that they knew that intoxicating beverage would be distributed but continued to operate the service,” he said.

William H. Stayton, leader of the Association Against the Prohibition Amendment – which is trying to reform laws around alcohol and drinking premises – told the NYT that the verdict was “a gross injustice”.

“This wasn’t a criminal trial, it was a political trial. It is just gross beyond description that you can jail four people for directing thirsty citizens to the places they want to go.”

“There is a lot of anger in New York City right now. Drinking is an institution here and while I can’t encourage people to break the Volstead Act, I’m not following it and I don’t agree with it.”

“Today’s events make the consumption of alcoholic beverages a hot political issue and we’re going to take this to Congress.”

Here’s the history we’re doomed to repeat:

In 1921, 95,933 illicit distilleries, stills, still works and fermentors were seized. in 1925, the total jumped to 172,537 and up to 282,122 in 1930. In connection with these seizures, 34,175 persons were arrested in 1921; by 1925, the number had risen to 62,747 and to a high in 1928 of 75,307 (Internal Revenue, Service, 1921, 1966, 1970: 95, 6, 73). Concurrently, convictions for liquor offenses in federal courts rose from 35,000 in 1923 to 61,383 in 1932.

The law could not quell the continuing demand for alcoholic products. Thus, where legal enterprises could no longer supply the demand, an illicit traffic developed, from the point of manufacture to consumption. The institution of the speakeasy replaced the institution of the saloon. Estimates of the number of speakeasies throughout the United States ranged from 200,000 to 500,000 (Lee, 1963: 68).

Here’s the outcome, and our future:

It is difficult to assess the relative numbers of the wet and dry partisans during the last few years of national prohibition. In terms of strength, however, the wets surely had the edge which less than two decades before had belonged to the drys. The new wet strength showed up at the National Convention of the Democratic party held in Chicago in 1932, where Mayor Cermak of that city filled the galleries with his supporters. And, though Franklin D. Roosevelt had wooed the dry vote for some time, he now came forward on a platform which favored the outright repeal of the 18th Amendment. Accepting his nomination, he stated:

I congratulate this convention for having had the courage, fearlessly to write into its declaration of principles what an overwhelming majority here assembled really thinks about the 18th Amendment. This convention wants repeal. Your candidate wants repeal. And I am confident that the United States of America wants repeal (Dobyns, 1940: 160).

While dry leaders looked on with disgust, Roosevelt was elected president and Congress turned a somersault. The repeal amendment was introduced February 14, 1933, by Sen. Blaine of Wisconsin and approved two days later by the Senate 63 to 23. The House followed four days later, voting 289 to 121 to send the amendment on to the States (Lee, 1963: 231).

And the allegorical analogue of The Pirate Party? The Association Against the Prohibition Amendment (AAPA):

The job of total repeal was accomplished with the help of the determined AAPA during the succeeding year. Their lawyers assisted the states in preparing bills for conventions and release of various forms of political propaganda, thereby enacting a serious satire on the 1919 campaign launched by the Anti-Saloon League. Notwithstanding their high and enduring constitutional principles, on December 31, 1933, with repeal a reality, the AAPA ceased to exist and sent its files to the Library of Congress. “Having attained its objective . . . the Association resisted the temptation to linger on as a ‘sentinel of American liberty’ ‘’, the New York Times observed in the organization’s obituary (Dobyns, 1940: 132).

A ‘sentinel of American liberty’ eh? Would you find such an organisation in the US today? The land of the free?

The Free Software Foundation is close, but it doesn’t campaign for the abolition of copyright (yet).

At least we can take heart that abolition is not far away, that day when the people’s natural right to cultural liberty has been restored, to freely share and build upon published works.

The question is, at what moment in the American Prohibition Era did the allegorical Bootlegger Bay case occur? I suspect it would have occurred around 1925 when by that time in New York City alone there were anywhere from 30,000 to 100,000 speakeasy clubs. Given repeal occurred 8 years later, that puts the date for the abolition of copyright somewhere around 2017.

Not long now…

Freedom of speech means you should be able to say or publish anything at any time – without physical restraint or interference, e.g. censorship.

Liberty means there are repercussions for certain speech, especially authoritative publication, e.g. malicious falsehood, violations of privacy, threats to life.

Thus if you publish the knowledge (obtained by a tip-off from a burglar who snuck into Fred Smith’s bedroom via a poorly secured window and peeked into their sock drawer) that Fred Smith has pink socks, then this is to compound the burglar’s privacy violation.

Fred Smith own’s the colour of his socks, but the colour of his socks is not intellectual property, i.e. it can’t be transferred because it is not identifiable as a distinct/independent work and thus can’t comprise property. However, his socks can be transferred of course, as material and intellectual property, given the sock represents both a material as well as an intellectual work. The colour of the socks comprises part of the intellectual work that the socks represent (their shape, design, weave, fibre, pattern, colour, etc.).

If the burglar had taken a photo of the socks then this would constitute IP theft, since the image of the sock captures a large part of the intellectual work the sock comprises, and is also able to identify the intellectual work.

However, no-one has a natural right to a monopoly, whether in the material design of the sock or its visual appearance. Once you’ve bought Fred Smith’s socks (if he wanted to sell them) you can naturally copy them to your heart’s content – and are also as a consequence able to publicise the fact that Fred sold you some pink socks (if you don’t think your reputation will suffer for such an indiscretion). Then again, if by some coincidence you unwittingly produced a pair of socks that were indistinguishable from Fred’s, well, that’s fine too (however you won’t necessarily know that Fred has a pair just like them).

This is how intellectual property works without monopoly. There are still laws against copying intellectual work, it’s just that they’re restored in alignment with natural law, i.e. you can copy what you privately possess, but not that which someone else privately possesses. Your freedom is not unethically constrained by being prohibited from invading or violating another’s privacy.

But most importantly, your freedom is not constrained due to the granting of unnatural monopolies of copyright and patent to mass producers of copies and devices. Such monopolies are unethical and should be abolished.

Without monopoly, intellectual property is natural, along with natural intellectual property rights.

The film industry’s latest advertisement in their campaign to prolong their anachronistic privilege of copyright (at the expense of suspending the public’s natural right to cultural liberty) is a bit of an own goal.

The amusing and yet depressing irony about the video clip is that its producer’s cultural liberty to incorporate the original soundtrack from Jaws has been suspended by copyright – and it comes across as if they didn’t fancy the prospect or expense of obtaining clearance – so they substituted something vaguely reminiscent.

This evasion does no credit to John Williams (the composer of the original music to Jaws), and implies that even the producers of the advert have no compunction in hypocritically avoiding paying the royalties they’d presumably otherwise argue he’s due. Isn’t that ‘copyright theft’?

They thus reveal the perverted, illiberal world they’d like us all to live in at the same time as ‘thanking’ people for similarly abstaining from taking natural liberties with the movies they buy. Those poor people the MPAA would thank for not yet having deprogrammed themselves from the brainwashing that it’s wrong to share copyrighted music and movies, and wrong to use copyrighted theme music in your own videos that you upload to YouTube.

On the other hand, when it comes to Knock-off-Nigels, most of us loathe them with good reason, those dishonest types who share inferior quality VHS transfers or videocam recordings and label them as full quality DVD rips when they should have truthfully described them. No-one will mourn Nigel’s passing (he was probably an MPAA employee).

So, come on everyone, let’s be honest. There is no shame in sharing and building upon published culture. Copyright is an unethical constraint on society’s cultural liberty and those societies who choose to remain bound by it choose cultural stagnation and obscurity.

Let’s see this video remixed with the appropriate musical segments from the original Jaws movie and uploaded to YouTube; let’s make John Williams proud that his music isn’t consigned to copyright oblivion to suffer the indignity of crude substitution. Let’s show the film industry what cultural freedom is all about, and how much more culturally vibrant and diverse the world is when artists are free to share and build upon each other’s work.

Don’t forget: that’s free as in free speech, not ‘free’ as in ‘free beer’.

Mike Masnick introduces us to a great new work, the like of which I have not seen since the Grey Album.

Let us wonder why this musician ‘Kutiman’ may not have either prepared his derivative art or even obtained our reward without seeking the permission of all those whose work he sampled.

Even if each of his sampled videos was CC-NC licensed, this mixing artist may not receive a single one of our pennies without theoretically becoming liable to copyright litigation – unless they painstakingly obtain permission from each and every copyright holder.

Why should such permission be required?

Why must this artist’s liberty be so suspended? Why may we not even reward them for their excellent intellectual work? Kultiman has provided attribution and links to each of the constituent works, so it is not as if we’re discouraged in also discovering and rewarding the underlying artists.

Elexis Trinity

Juice Lee

If such art can only be created and rewarded outside the law, then we must look to outlaws for such art, and reward them as outlaws.

Copyright is an unethical constraint on society’s cultural liberty and those societies who choose to remain bound by it choose cultural stagnation and obscurity.

Many people confuse ‘copyright’ with ‘exclusive right’ (as recognised by the US Constitution of 1787), and thus presume that copyright is both a natural right and constitutional. Some people even cite the constitution’s recognition of ‘exclusive right’ as equivalent to recognising copyright as a natural right, and so term this the ‘copyright clause’¹.

There is also a misguided notion that the constitution can grant rights to US citizens, and that copyright is such a granted right. It can do no such thing, and did not, as it instead only recognises the natural rights that the citizens already have that they empower the government to secure². Copyright is a mercantile privilege³, enacted after the constitution, supposedly⁴ to persuade authors to release their writings from the protection of their exclusive rights for the public’s benefit – by granting authors the reward of a potentially lucrative reproduction monopoly over their published works. Thus copyright is a privilege granted by the government – unconstitutionally.

Nevertheless, despite being a mercantile privilege, copyright both helps secure⁵ an author’s exclusive right to their (unpublished) writings and incentivises the author to publish them (given the monopoly).

To help clear up any confusion between ‘exclusive right’ and ‘copyright’, I will now explain what an author’s exclusive right is, and why it is natural and self-evident, and consequently able to be recognised by the US Constitution.

Exclusive Right vs Reproduction Monopoly

Secondary to a human being’s natural right to life, is their natural right to privacy. This is the individual’s natural interest and ability to exclude others from a space about themselves, their dependents, and their possessions, and from within their larger enclosures thereof such as houses. This space is known as the individual’s private domain, and it is from the individual’s right to privacy (to secure and exclude others from their private domain) that material and intellectual property rights derive.

There are three key mechanisms for obtaining property, which are:

1. gathering (from one’s environment whether a natural resource or another’s abandonment)
2. creation (physical or mental labour), and
3. exchange (from receipt of purchase or gift).

In all cases private property is obtained by introducing objects into one’s private domain (each with a degree of intellectual and material component).

An author’s intellectual works that they fix in a physical medium, especially their original writings, are self-evidently the author’s intellectual property. These writings are what they have a natural exclusive right to, especially given that in the traditional case of writing they must first manifest under the private hand of their author’s body, and from thence to storage elsewhere within their private domain. It is up to the author whether they keep their writings private, exclusive to themselves, or whether they pass them on to others (either included in their confidence, or for public dissemination).

Thus, having the natural right to exclude others from their private domain, an author has the natural right to exclude others from any action concerning their private writings, whether reading, copying, performing, communicating, removing, destroying, or anything else. However, they only naturally have this right over the writings within their private domain. The author has no natural ability and consequently no natural right to control what others may do with the writings the author may have provided to them (whether by purchase or gift)⁶.

Unfortunately for US citizens, their exclusive rights to their writings, designs or any other of their intellectual works or property are rather poorly protected. Despite being constitutionally empowered to secure them, the state does not police and prosecute those who violate an author’s exclusive right to their writings – as it should (and as it does for their material property).

So, you may now see why I so often argue that it would be better if the unconstitutional reproduction monopoly of copyright was abolished (being intended for exploitation by the press), and was replaced by law that properly secured an individual’s exclusive right to their writings, designs, and other intellectual property. The constitution is supposed to be about equally protecting the natural rights of the individual in a stable and free society, rather than to be a means of privileging commercial corporations above them, to exploit them (irrespective of alleged societal benefits).

Thus ‘exclusive right’ is an individual’s natural intellectual property right that is not properly secured despite constitutional recognition, and ‘copyright’ is an unconstitutional reproduction monopoly that only coincidentally helps the wealthy individual (or their publishing agent) secure their exclusive right, but primarily rewards the publishing corporation at the expense of the people’s suspended cultural liberty.

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¹ This puts the cart before the horse, given the constitution can only recognise the natural law that precedes it. It can’t recognise the subsequent US copyright law, because that must logically derive from the constitution and have its sanction (it cannot both inform it and derive from it). The constitution is also unable to recognise British copyright (of 1710, which also didn’t recognise copyright as a natural right).

² From WikiPedia – Rights of Man:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Government’s sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate — especially the Monarchy, the Nobility, and the Military.

³ Also perniciously termed a ‘legal right’ as some prefer, often dropping the ‘legal’ qualifier to insinuate it has equivalent standing to a natural right (which now tends to need such qualification given contemporary abuse of ‘right’ in place of ‘privilege’). One must thus be careful to distinguish between law made to protect natural rights and law made to grant privileges, i.e. especially such unethical ‘legal rights’ as copyright and patent.

⁴ It is more likely that copyright was created to benefit printers, coinciding with the state’s interest in obtaining leverage over the press.

⁵ Being a privilege rather than a right, copyright can typically only be exploited and enforced by wealthy publishers with their expensive reproduction machinery and sizeable litigation budget.

⁶ They may be granted the privilege of doing so, as a favour from a king perhaps, but that would be inegalitarian, as it suspends this liberty from all in order to reserve it as the exclusive privilege of the favoured subject (or their assigns).

Cory Doctorow suggests that the ‘ultimate EULA’ is simply “Don’t violate copyright law”. That seems to be a mixture of “Don’t violate an author’s rights”, “Don’t infringe copyright”, and “Obey the law”. The first is sufficient, but it is an admonition, not a license.

A license restores liberty to the purchaser/owner of the copy that is otherwise suspended by copyright.

A license is not a contract of sale, nor a means of the copyright holder being able to reach out and bind passers by.

The purchaser of the copy already has the copy and their liberty (save that derogated from it by copyright). The license can only restore their liberty, in whole or part, even if with conditions. It cannot further suspend the purchaser’s liberty. After all, liberty is inalienable, one could not contract it away even if one wanted to.

A license may also contain or have attached a pro-forma contract that the owner of the copy could agree to at any future date should they wish to (assuming it to be valid), but by the definition of ‘agreement’ or ‘contract’, the purchaser cannot be coerced, or tricked into it by dint of an action they are at liberty to perform in any case.

The shortest license is no license.

The fairest license is a copyleft license.

The shortest, fairest, and simplest license is the libertarian license: You are free to take any liberties you wish with my published work, with but one constraint: The liberties you take may not be withheld from those to whom you give my work (or your combined/derivative work), who you must similarly constrain.

Even better and simpler would be to abolish copyright.